Opinion
BAR-22-2
11-23-2022
BOARD OF OVERSEERS OF THE BAR, Plaintiff v. Donald F. Brown, Esq. of Brewer, ME Me. Bar #008541 Defendant
Suzanne E. Thompson, Esq. Assistant Bar Counsel
Suzanne E. Thompson, Esq. Assistant Bar Counsel
PROBATION AND MONITORING ORDER
Thomas R. McKeon Justice
1. Starting on December 2 and continuing for a period of one (1) year, Donald F. Brown (hereinafter "Brown") shall be monitored in his practice by Dawn Pelletier, Esq. If Attorney Pelletier is unable to continue her service as Monitor, then that role shall be undertaken by a mutually agreed-upon third party or as otherwise selected and directed by the Court.
2. Any costs or fees associated with the Monitor's supervision shall be borne by Brown.
3. Brown will meet with the Monitor at her calling and convenience, on a bi-weekly basis, unless the Monitor subsequently determines that more or less frequent meetings are appropriate.
4. The Monitor shall have the right to withdraw and terminate her services at any time for any reason she deems necessary. If she intends to do so, she shall provide written notice to the Court and to Bar Counsel of such withdrawal, whereupon this matter shall then be scheduled for further hearing as deemed appropriate by the Court.
5. If any aspect of the monitoring process creates a situation, which is, or might be interpreted to be a conflict of interest under the Maine Rules of Professional Conduct, the Monitor may adopt any one of the following courses with the proposed result:
a. Monitor ceases to act as monitor and a potential conflict is avoided.
b. Monitor continues to serve as the Monitor, but totally excludes Brown's client's matter from the supervision process, so that no conflict is deemed to exist.
c. Monitor continues to serve as the Monitor, but withdraws from the conflicted matter.
d. Monitor continues to serve as Monitor and obligates Brown not to participate in the matter and to promptly refer his client to successor counsel or the Lawyer Referral Service.
6. The Monitor shall have the right to contact clerks of court, judges, or opposing counsel to monitor and confirm Brown's compliance with his professional obligations.
7. Likewise, if the Monitor determines that Brown should refrain from expanding his practice areas, particularly as necessary to comply with provisions of the October 4, 2022, Sanction Order, the Monitor shall inform Brown of that fact. Brown shall then follow the Monitor's directive to refrain or limit his acceptance of such cases, absent this Court's order to the contrary.
8. The Monitor shall not initiate contact with any of Brown's clients. The Monitor's only communications in the performance of her monitoring duties shall be with Brown, his counsel, or other persons contemplated by this decision, including and Bar Counsel's office. However, if any clients contact the Monitor with concerns about Brown's conduct, then they should be referred to Bar Counsel.
9. The Monitor's participation in the disposition of Brown's disciplinary case and monitoring of Brown's practice shall be deemed not to create an attorney-client relationship between Brown and the Monitor or between the Monitor and Brown's clients. Specifically, the Monitor shall be deemed not to represent Brown or any of Brown's clients or to be employed by them in any capacity and the Monitor shall not have any responsibility of any nature to any of them. Moreover, the attorney-client privilege shall not apply to the Monitor's supervision of Brown's practice, and the Monitor shall be immune from any civil liability (including without limitation, any liability for defamation) to Brown or any of Brown's clients.
10. Attorney Pelletier shall have the authority to review and examine any Brown's files, except those in which Attorney Pelletier might have adverse interests as defined herein. In that event, Attorney Pelletier shall notify Bar Counsel who may then develop an alternative means of file review.
11. Brown shall prepare and present to the Monitor two weeks in advance of their first meeting a list of all his current clients, showing each pending client's matter with a brief summary and calendar of the status thereof. For all subsequent meetings, Brown shall prepare and present that information to the Monitor at least three days in advance of the meeting.
12. Attorney Pelletier will, as soon as practicable, have Brown establish a method of objectively identifying problematic or delinquent client matters and have Brown institute internal checks and controls to make his practice appropriately responsible to the needs of his clients.
13. It is permitted and expected that Brown shall incorporate and use assistance from the Monitor as is deemed necessary and appropriate.
14. Pursuant to the Court's October 4, 2022, Sanctions Order, the Monitor shall report Compliance with the terms of the October 4th Order to the Board on a monthly basis.
15. Additionally, the Monitor shall file a written confidential report with the Court every three months or sooner if the Court deems it necessary. The Report shall be copied to counsel for Brown and Bar Counsel, and shall cover at least the following subjects:
a. A description of any client matter identified as delinquent or problematic;
b. A description of any matter wherein Brown was discharged by a client, court or agency due to perceived or actual professional misconduct;
c. Measures Brown has taken to identify potential conflicts of interest and to avoid problematic interactions with her clients, opposing counsel/litigants, jurists and clerks and others related to his practice of law.
d. A list of all counties where Brown is rostered to accept cases via MCILS and recording of all Court appointed work assigned to Brown, which can be either filed under seal or redacted to protect client confidentiality;
e. Any professional assistance the Monitor has provided to Brown;
f. A summary of relevant status updates provided by court staff and members of the bar, as referenced in SI6.
16. The Monitor shall have the duty to file a written report with the Court and Bar Counsel concerning any apparent or actual professional misconduct by Brown of which the Monitor becomes aware as well as information concerning Brown's inability to return to a Federal/State court appointment roster and/or removal, via consent or involuntarily, from the appointment roster of Federal and/or State courts.
17. The Monitor shall provide a written report to the Court and Bar Counsel concerning any lack of cooperation by Brown with the terms of this Order.
18. Brown shall refrain from all improper conduct and shall report immediately any civil or criminal charges to Bar Counsel; he shall further report any convictions arising out of criminal conduct in any jurisdiction.
19. Brown shall report to Bar Counsel any matters in which he is the subject of any civil protection order, e.g., Protection from Harassment or Protection from Abuse.
20. If he has not already done so, Brown shall designate a Maine attorney willing and able to serve as his proxy in the event of any future disability, pursuant to M. Bar R. 1(g)(12). Brown shall promptly inform the Board of that proxy, as well as maintain accurate contact and IOLTA information on file with the Board of Overseers, as is required under the Maine Bar Rules.
21. Brown shall abide by and comply with all provisions of the Maine Rules of Professional Conduct and the Maine Bar Rules.
22. Brown shall report any grievance complaints and disciplinary proceedings and/or sanctions to all jurisdictions where he is admitted.
23. During the period of his monitoring, Brown shall complete his 2022 and 2023 CLE obligations, prior to the termination of his one (1) year suspension. Brown shall complete an additional 3 hours of CLE credit in conflict of interest and an additional 3 credit hours in ethics. These CLEs shall be in addition to the twelve (12) hours of CLE annually required of every Maine attorney under Maine Bar rule 5(a). The coursework, time, and location of all of Brown's CLE credit hours must be approved by the Board. In addition, the Board may dictate specific programs for the additional credit hours.
24. Brown shall timely comply with his required annual registration filings and continuing legal education requirements.
25. Any verified and/or investigated new complaints concerning conduct that allegedly occurred after the date of this Order, may form the basis for additional disciplinary filings directly before the Supreme Judicial Court under M. Bar R. 13(g).
26. Brown's violation of any condition enumerated within this Order may result in the Board's filing a Motion for Violation of the Sanctions Order.
27. Upon a finding that Brown has violated any condition enumerated within this Order, the Court may impose the entire suspended portion of his suspension, or any part thereof, and terminate his probation.
BOARD OF OVERSEERS MOTION FOR CLARIFICATION & FURTHER ORDER
NOW COMES the Plaintiff, Board of Overseers of the Bar (the "Board"), through Suzanne E. Thompson, Assistant Bar Counsel, and hereby respectfully moves the Court to clarify the October 4, 2022, Sanctions Order and enter a further order. Specifically, Assistant Bar Counsel requests that the Court impose a deadline for Defendant's reimbursement of costs, require Defendant to bear any associated costs of monitoring and order that Bar Counsel office, or the Court, be permitted to select a monitor in the event the parties cannot reach agreement after twenty-one (21) days.
The Court's October 4, 2022, Sanctions Order, required Defendant to "fully reimburse the Board of those costs recoverable under Me. B. R. 22" but did not set a payment deadline. The Board respectfully requests that the Court order the payment to be made within twenty-one (21) days from the date of an Order issuing as a result of this Motion.
Pursuant to the October 4, 2022, Sanctions Order, Defendant received a one (1) year suspension based on his violations of Me. Bar. R. 5(e)(3) and M.R. Prof. Conduct 8.4(a) and 8.4(c). Defendant's suspension was suspended, subject to conditions that include appointment of a monitor. Pursuant to the Sanctions Order, the monitor is tasked with confirming Defendant's compliance with the terms of the Sanction Order including, reporting additional violations of the Maine Bar Rules or Maine Rules of Professional Conduct, ensuring Defendant maintains a "reasonable" court appointed caseload and providing monthly compliance reports to the Board. The Court did not outline who is responsible to pay the costs of the monitor. Given the geographical location of Defendant's practice and availability of attorneys in that area, some level of compensation will be required to locate a competent Practioner who can effectively monitor Defendant's practice and ensure compliance with the terms of the Sanctions Order.
Moreover, the Order required that the parties reach agreement on the monitor within twenty-one (21) days of the Court's Order, or by October 25, 2022. The Order did not address next steps if the parties could not agree on a monitor. At the time of drafting, there is not consensus on who should serve as monitor. Based on the foregoing, and to avoid further delay, the Board requests that the Court independently order appointment of a monitor, or in the alternative authorize Bar Counsel's Office to decide who will serve in that role.
Defendant's counsel, James Bowie was contacted relative to this Motion but as of the time of filing has not given a position.
WHEREFORE, the Board moves that this Honorable Court enter a further order to set a deadline for Defendant's reimbursement of required costs, require Defendant to pay the costs of monitoring, as determined by the monitor, and permit Bar Counsel's Office to choose the monitor in the event of a stalemate, to ensure compliance with the requirements of the October 4, 2022, Sanctions.